[ v59 p937 ]
59 FLRA No. 168
OF GOVERNMENT EMPLOYEES,
May 12, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an interest arbitration award of Arbitrator Roger P. Kaplan filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. The Union and the Agency also filed supplemental submissions.
As relevant here, the Arbitrator directed the parties to adopt provisions concerning grievances, interim negotiations, and leave. For the reasons that follow, we find that the award is not contrary to law and we deny the exceptions.
II. Background and Arbitrator's Award
The unit employees were represented by the National Treasury Employees Union (NTEU) until the Union (or NAGE) won a representational election and became their exclusive representative. The parties continued to abide by the NTEU-PBGC collective bargaining agreement while negotiating a new agreement. Subsequently, the Federal Service Impasses Panel (the Panel) granted the parties' joint request for approval of binding interest arbitration to resolve an impasse that had arisen in negotiations over their first collective bargaining agreement (CBA). Before the interest Arbitrator, the parties reached agreement on all but ten proposals, three of which are at issue here.
During the arbitration hearings, the interest Arbitrator informed both parties that he would decide the articles at impasse on an article-by-article basis. Additionally, he told them that he would decide the articles at impasse based on their last best offer, which meant that he would not choose certain sections from the Union's proposal and certain sections from the Agency's proposal within the same article. Neither party objected to this procedure.
With respect to the three provisions here at issue, the Arbitrator considered both parties' proposals and, for the reasons set forth in his award, concluded that the Agency's proposals should be adopted. [n2] The provisions follow: [n3]
Either party may file a grievance with the other party concerning an allegation that the non-filing party has violated a provision of this Agreement or regarding the non-filing party's interpretation or application of this Agreement. The parties will not file unfair labor practice charges with the Federal Labor Relations Authority over matters that are the subject of or related to matters raised as institutional grievances.
Exceptions at 6; Exhibit 3 at 6.
Once every 120 days the Union may submit written proposals to bargain about no more than two new topics. These topics must concern matters that are not contained in or covered in this Agreement, were not discussed in term, mid-point, or other previous bargaining sessions, and do not arise from changes in law or government -wide regulations . . . .
Id. at 7; Exhibit 4 at 3. [ v59 p938 ]
Recrediting of Annual and/or Sick Leave
When an employee is on approved annual or sick leave and is required by his/her supervisor to participate in work related activities during that time, he/she will have the amount of work time credited as duty time and only be charged leave for the remainder of the day. Participation in these approved work related activities must be for a minimum of 1/2 hour in order to be credited.
Id. at 8; Exhibit 5 at 6.
III. Positions of the Parties
The Union filed five exceptions to the award.
First, the Union asserts that Provision 1 is contrary to law because it "requires the Union to waive its statutory right to file both [a ULP] and an institutional grievance that arise from a matter even though the institutional grievance involves a different issue, rests on a different theory and does not allege an [ULP]." Exceptions at 10. Citing § 7116(d) of the Statute, the Union asserts that the Authority has held that a union's statutory right to file a ULP is not barred by a grievance where the grievance, for example, alleges violations of a contract, past practice, or agency regulation and where the ULP charge asserts a different theory. [n4] The Union asserts the provision would bar ULPs over matters "vaguely" related to matters raised as institutional grievances. Id. at 11. The Union contends the Arbitrator ignored the principle of § 7116(d) as reflected in relevant precedent.
In this regard, the Union asserts that because the Arbitrator used an article-by-article approach in the arbitration, and determined that he would adopt in its entirety one or the other of the parties' last best offers without modification, the Authority should find the entire article on grievances ordered by the Arbitrator unlawful and require the adoption of the Union's proposed article. Also, the Union asserts that as the Arbitrator decided the arbitration article in conjunction with the grievances article, the Authority should order the adoption of the Union's article on arbitration.
Second, the Union contends that Provision 2 "unlawfully precludes the Union from initiating midterm bargaining over a topic that, although not covered by an existing agreement was merely `discussed' in previous bargaining." Id. at 12-13. Citing Headquarters, 127th Tactical Fighter Wing, Mich. Air Nat'l Guard, Selfridge Nat'l Guard Base, 46 FLRA 582 (1992) (Selfridge), the Union asserts that the provision eliminates all three Selfridge criteria that must be met for a union to waive its right to initiate midterm bargaining over a topic. The Union argues that the provision "precludes [it] from bargaining if there was mere discussion, rather than a `full' discussion. It precludes the Union from bargaining even if the topic was not consciously explored. And, it eliminates the Union's right to bargain even if the Union did not consciously yield on the topic or clearly and unmistakably waive its interest in the topic[.]" Id. at 13-14. Noting the process used by the Arbitrator in the arbitration, the Union asserts that the Authority should find the entire provision on interim negotiations unlawful and order the adoption of the Union's proposed article.
Third, the Union contends that Provision 3 is contrary to law because it "allows the Agency to require employees to work for as long as 29 minutes without compensation when they are on their own time on leave." Id. at 14. Referring to 31 U.S.C. § 1342, the Union asserts that it is unlawful for an agency to accept unpaid voluntary services. Citing 5 C.F.R. § 551.401(a), the Union asserts that all time spent by an employee performing an activity for the benefit of an agency and under the control and direction of the agency is "hours of work." [n5] Id. at 15. In reference to 5 C.F.R. § 551.412, the Union asserts that "[w]ork time of more than ten minutes is more than de minimis and must be compensated." [n6] Id. The Union contends, therefore, that by requiring an employee to use approved leave, and work an additional 29 minutes, the Agency is failing to pay the employee for more than their full day's or full week's work. Citing Soc. Sec. Admin., Balt., Md., 53 FLRA 1053 (1997) (SSA), the Union contends that the use of paid leave counts as hours of work for determining when overtime applies. In support, the Union also cites Matter of Overtime Compensation - Worked Performed at Home, 65 Comp. Gen. 49 (Oct. 31, 1985). The Union asserts that the Arbitrator failed to address its legal arguments and requests the Authority to order the parties to adopt its proposal.
Fourth, the Union contends that the Arbitrator "unlawfully placed the burden on the Union to justify why there should not be a narrow scope to the grievance procedure that would preclude the right of employees to grieve over unfounded warnings and unfair or invalid [ v59 p939 ] performance improvement plans." Exceptions at 16. The Union argues that court and Authority decisions hold that the burden is on an agency to justify a narrow scope grievance procedure compared to what is permitted under §§ 7103(a)(9) and 7121(b) and (c) of the Statute. In support, the Union cites AFGE v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983); Vt. Air Nat'l Guard, Burlington, Vt., 9 FLRA 737 (1982). Referring to the award, the Union argues that, contrary to law, the Arbitrator required it to make a "`persuasive'" and "`convincing'" case as to why not to narrow the scope of the grievance procedure. Id. at 18, referring to Award at 9-10.
Finally, as its fifth exception, the Union contends that if the Authority grants the Union's first exception and orders adoption of the Union's proposed article on grievances, the Authority should also order the Arbitrator to reconsider his decision on the performance management and evaluation article "insofar as he linked it to the [g]rievance article." Exceptions at 19.
2. Supplemental Submissions
After the Union filed its exceptions and the Agency filed its opposition, the Union filed a document containing three motions and a supplemental submission in support of the motions. The first motion, made pursuant to § 2429.5 of the Authority's Regulations, requests the Authority to not consider an Agency argument, set out below--that the Union waived its right to challenge the award on the ground that it is contrary to law--because such argument was not raised before the Arbitrator. The Union asserts that despite its "repeated assertions that the Agency's articles were contrary to law, not once . . . did the Agency . . . claim to the Arbitrator that the Union had waived its rights." Motion at 8.
Alternatively, in its second motion, pursuant to §§ 2429.5 and 2429.26, the Union asks the Authority to grant it permission to reply to the Agency's waiver argument and also to submit the parties' bargaining ground rules, additional portions of the arbitration record, and the affidavits of two Union representatives describing the parties' contract negotiations, arbitration, and ground rules. The Union asserts that because the waiver issue was not raised until after the Union filed its exceptions, extraordinary circumstances justify providing it with an opportunity to reply.
The Union's third motion requests the Authority to strike an affidavit attached to the Agency's opposition, identified as Exhibit 2. The Union contends that this document was not presented in the arbitration.
Subsequently, the Union filed two additional motions and a response to an Agency supplemental submission described below. The first motion, made pursuant to § 2429.5 of the Authority's Regulations, requests the Authority to strike the supplemental submission on the ground that it seeks to untimely supplement its response to the exceptions with additional arguments and evidence.
Alternatively, in its second motion, the Union requests leave, pursuant to § 2429.26 of the Authority's Regulations, to file a response to the supplemental submission. The Union argues that the waiver argument could not have been anticipated and the Agency improperly seeks to introduce selective evidence concerning the interim negotiations provision.
B. Agency's Opposition
The Agency asserts that the Union waived its right to contest the lawfulness of the award. The Agency contends that the Union participated in the request to the Panel and, after the Arbitrator was selected, identified only one negotiability issue for consideration prior to the filing of post-hearing briefs, that being the Agency's Interim Negotiations proposal, which concerned a different issue. The Agency asserts that the Arbitrator issued a decision declining to rule on the negotiability issue and the Union did not file exceptions to this decision and opted to continue with the arbitration. The Agency argues that the Union had an opportunity to contest the legality of the provisions "in the form of a negotiability determination[,]" but chose not to do so, and therefore, the Union waived its right to file exceptions. Opposition at 4. In support of its waiver argument, the Agency submitted, with its opposition, an affidavit of an Agency representative who described the parties' contract negotiations and arbitration proceeding.
The Agency contends that the Union knew the Arbitrator was going to use an article-by-article approach and elected to participate. The Agency asserts that at no time after the Arbitrator's earlier decision on the negotiability of the Agency's proposal on interim negotiations did the Union raise concerns about the negotiability of the Agency's grievances, interim negotiations, or leave proposals. According to the Agency, these facts "point to a clear and unmistakable waiver." Id. at 6. The Agency argues that a "key factor" is that the provisions are the same as those proposals considered by the parties prior to the arbitration. Id. Thus, the Agency argues that in challenging the award, the Union is "simply seeking ex post facto negotiability determinations." Id.
The Agency further asserts that Provision 1 is not contrary to law, namely § 7116(d) of the Statute. According to the Agency, the provision does not ask the Union to choose between supporting an individual employee's grievance and filing a ULP; rather, the language [ v59 p940 ] "requires the Union to elect a forum . . . when acting on its own behalf." Id. at 8.
Concerning Provision 2, the Agency disputes the Union's claim that the phrase "were not discussed in term, mid-point, or other previous bargaining sessions" is contrary to law. Id. at 10. The Agency asserts that the Union has misapplied Selfridge because a waiver through bargaining history is not the question here. Rather, according to the Agency, the proper question is "whether the [U]nion has limited, not waived, its right to bargain by express agreement." Id. at 11. The Agency contends that the Union chose to submit the interim negotiations proposal to arbitration and should not be allowed to escape that binding agreement.
The Agency asserts that Provision 3 addresses rare occasions when supervisors call employees who are on sick or annual leave to discuss work-related matters and does not concern occasions when employees are at work and supervisors direct them to work overtime. The Agency contends that the provision does not require employees to work without compensation because employees who are on annual or sick leave are receiving compensation. Referring to 5 C.F.R. § 630.206(a), the Agency asserts that the minimum charge for sick or annual leave is one hour, unless a charge of less than one hour is established through negotiations. The Agency asserts that through the arbitration the parties have established a corollary to the OPM rule: leave will be re-credited in one-half hour increments.
Lastly, the Agency asserts that if the Union's contentions are found to have merit, the proper remedy is for the provisions to be revised to conform to law. Alternatively, the Agency asserts that the parties should be directed to bargain new language.
2. Supplemental Submission
The Agency filed a supplemental document opposing the Union's motions and submission and arguing that the submissions are inappropriate under § 2429.26 of the Authority's Regulations. The Agency asserts that the parties engaged in discussions over the Union's duty to bargain over language in the provisions and the Union chose to allow the Arbitrator to decide the dispute based on a process where either the Agency's or Union's proposals would be adopted. The Agency contends that waiver was raised at the hearing and, therefore, there are no grounds to allow the Union to file the submissions. The Agency requests that if any of the motions are granted, it be permitted to file a response. [n7]
IV. Analysis and Conclusions
A. Preliminary Matters
1. The Union's Motions to File Supplemental Submissions Are Granted
The Authority's Regulations do not provide for the filing of supplemental submissions. However, § 2429.26 of the Authority's Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. See, e.g., AFGE, Local 2004, 55 FLRA 6, 9 (1998). Here, the Union's supplemental submissions challenge issues first raised in the opposition. As the Union has established sufficient reason for filing the supplemental submissions in this case, we accept the submissions. Further, as the Agency's opposition presents issues arising from the award, we deny the Union's motion to strike the affidavit attached to it. See, e.g., United States Dep't of the Navy, Supervisor of Shipbuilding Conversion and Repair, Pascagoula, Miss., 57 FLRA 744, 745 (2002) (Dep't of the Navy) (where an issue arises from the issuance of the award and could not have been presented to the arbitrator, it is not precluded by § 2429.5). Also, as the Agency's supplemental submission addresses matters raised in the Union's supplemental submissions which we have accepted, we deny the Union's motion to strike the Agency's submission. Further, we find that the record is sufficient to address the parties' arguments and, therefore, we deny the Agency's request to file additional submissions.
2. The Union Did Not Waive Its Right to File Exceptions
A waiver of a party's statutory right to file exceptions to an arbitrator's award under § 7122(a) of the Statute must be clear and unmistakable. See United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000).
In this case, the parties agreed, pursuant to § 7119(b)(2) of the Statute, to adopt a procedure for binding arbitration. The Agency argues that by participating in the arbitration process with knowledge that the Arbitrator would adopt either the Agency's or Union's proposal without modification, the Union waived its right to contest the lawfulness of the award. The Authority has previously stated that the appropriate [ v59 p941 ] mechanism for challenging interest arbitration awards resulting from joint requests filed with, and approved by, the Panel under § 7119(b)(2) is through the filing of exceptions under § 7122 of the Statute. United States Dep't of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona, 41 FLRA 3, 8-9 (1991) (Dep't of the Interior). Accordingly, we reject the Agency's assertion that the Union waived its right to file exceptions by jointly requesting binding arbitration. We note, in this regard, that the courts and the Authority have held that "`[i]f arbitration is the route agreed upon, either party dissatisfied with the arbitration may seek review of the award by the Authority under § 7122[.]'" Id. at 8 (quoting Dep't of Defense Dependents Schools, Alexandria, Va. v. FLRA, 852 F.2d 779, 783-84 (4th Cir. 1988).
As to the Union's contention that Agency is barred by § 2429.5 from raising the waiver argument, the issue raised by the Agency's argument arises from the award. Where an issue arises from the issuance of the award and could not have been presented to the arbitrator, it is not precluded by § 2429.5. See, e.g., Dep't of the Navy, 57 FLRA at 745.
Accordingly, in the circumstances of this case, the record does not establish that the Union clearly and unmistakably waived its statutory right to file exceptions to the award by participating in the arbitration.
1. The Portions of the Award Directing the Parties to Adopt Provisions 1 and 2 Are Not Contrary to Law
As its first exception, the Union claims that the portion of the award adopting the Agency's article on grievances "contains an unlawful provision" that requires the Union to waive part of its § 7116(d) statutory right. Exceptions at 10. See also id. at 12 (Union asserts that "the provision in the article on [g]rievances that bars the Union from pursuing its statutory right is unlawful"). Similarly, as its second exception, the Union claims that the portion of the award adopting the Agency's article on interim negotiations "unlawfully precludes the Union from initiating midterm bargaining over a topic that, although not covered by an existing agreement, was merely `discussed' in previous bargaining." Exceptions at 12-13. In this regard, the Union asserts that the provision is "contrary to longstanding Authority decisions that define the scope of a union's statutory right to initiate midterm bargaining." Id. at 13. See also id. at 14 (the provision is "unlawful"). These are the Union's only claims regarding these portions of the award.
Consistent with the foregoing, the question before the Authority is whether the two provisions are contrary to law. For the reasons that follow, Authority precedent makes it clear that they are not unlawful. Rather, at a minimum, the provisions concern permissive subjects of bargaining and, as such, are by definition not contrary to law. [n8]
It is well established that provisions concerning permissive subjects of bargaining are not contrary to law. See, e.g., United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 393, 395-96 (2000), reconsideration denied, 56 FLRA 935 (2000) (arbitration award enforcing 7106(b)(1) provision not contrary to law); NAGE, Local R4-75, 24 FLRA 56, 62 (1986) (§ 7106(b)(1) provision not contrary to law). Consistent with this well-established precedent, the Authority does not permit agency heads to disapprove permissive contract provisions pursuant to their authority, under 5 U.S.C. § 7114(c)(2), to disapprove provisions that are contrary to the Statute or "any other applicable law, rule, or regulation[.]" See, e.g., AFGE, Local 1815, 53 FLRA 606, 622-23 (1997). This rule applies equally to agency head disapprovals of provisions imposed pursuant to interest arbitration ordered by the Federal Service Impasses Panel (the Panel) under § 7119(b)(1) of the Statute. See Patent Office Prof'l Ass'n, 41 FLRA 795, 797 (1991). In such situations, permissive contract provisions imposed by an interest arbitrator are fully enforceable.
There is no basis for applying a different standard in cases where parties mutually agree to resolve bargaining impasses through interest arbitration, with the [ v59 p942 ] approval of the Panel, pursuant to § 7119(b)(2) of the Statute. Unlike interest arbitration awards under § 7119(b)(1), interest arbitration awards issued pursuant to § 7119(b)(2) are reviewable by the Authority on exceptions under § 7122 of the Statute. See Dep't of the Interior, 41 FLRA at 6-9. However, this difference in review procedures does not provide a reason to permit a party in a § 7119(b)(2) case to challenge a provision concerning a permissive subject of bargaining. In all relevant respects, the standards of review in the two processes are the same. In particular, the standard of review of exceptions under § 7122(a) of the Statute requires that an award be set aside if it is "contrary to any law, rule, or regulation" and the standard of review for agency head disapproval under § 7114(c), which also is applied to interest arbitration awards pursuant to § 7119(b)(1), requires approval of provisions that are "in accordance with the provisions of this chapter and any other applicable law, rule, or regulation." Neither standard of review converts permissive subjects into prohibited subjects. Indeed, common sense dictates that, if a provision was contrary to law, then it could not be permissive.
Of course, "[w]hile parties are free to make proposals over permissive subjects, they may not insist to impasse on such proposals." United States Food and Drug Admin., NE. and Mid-Atl. Regions, 53 FLRA 1269, 1274 (1998) (citation omitted), reconsideration denied, 54 FLRA 630 (1998). They may also challenge the negotiability of a proposal that the opposing party has submitted in an interest arbitration proceeding, as the Union did in this case with respect to the interim negotiations article, but not the grievance procedure article. See Interim Award (May 2, 2001), Agency Ex. H. In this regard, the Arbitrator determined that he could not resolve the negotiability issue raised by the Union, under the standard set out in Commander, Carswell Air Force Base, Tex., 31 FLRA 620 (1988) (Carswell). In such circumstances, the Union could have challenged the Arbitrator's jurisdiction over the proposal. See id. at 622. The Union, however, did not request that the Arbitrator decline to resolve the impasse after his interim determination, and does not challenge in its exceptions the Arbitrator's jurisdiction over the impasse.
In sum, in situations such as this one -- where the parties jointly requested interest arbitration to resolve their impasse with full knowledge of each other's proposals and, thereafter, did not object to the Arbitrator's process for resolving the impasse -- there is no reason to permit either party to seek to overturn an interest arbitration award resolving the impasse on the ground that the subject is permissive. Permitting a party to attack a permissive subject on arbitral review in situations such as this one promotes litigation and delay, without serving any useful purpose. As there is no doubt that the parties could have agreed to the two provisions, and as there is no contention that the Union objected to impasse resolution of the provisions, they are enforceable. [n9]
Accordingly, the Union's exceptions are denied.
2. The Provision on Leave Is Not Contrary to Law
The Arbitrator ordered the parties to adopt the Agency proposal concerning the crediting of annual or sick leave in situations where an employee on such leave is required by his or her supervisor to participate in work activities during this time. The Agency proposed that participation in the work activities "must be for a minimum of 1/2 hour in order to be credited" as duty time, while the Union proposed "quarter hour increments for each such contact." Exceptions at 8; Award at 31.
The Union contends that the award is contrary to 31 U.S.C. § 1342; 5 U.S.C. § 5542(a) and (b); and 5 C.F.R. §§ 551.401(a), 551.431, and 551.412. It asserts that the provision requires an employee to work up to 29 minutes without compensation when the employee is on his or her own leave and that these [ v59 p943 ] requirements prohibit that. The Agency disputes the Union's claim and argues that the award is consistent with the Office of Personnel Management's regulation, namely 5 C.F.R. § 630.206(a).
The Union is correct that the provision provides for employees to work for up to 29 minutes during a period of approved leave without any recredit of leave or other reimbursement. However, none of the authority relied on by the Union prohibits this result. In particular, although 31 U.S.C. § 1342 does provide limitations on unpaid "voluntary services," the time at issue here is compensated, not voluntary. Similarly, although 5 U.S.C. § 5542 and 5 C.F.R. § 551.401(a) provide for overtime payment for certain hours and payment for all hours actually worked, there is no dispute that the employees are in fact being paid for the time at issue. Further, although 5 C.F.R. § 551.401(a) defines leave time to be "hours of work," 5 C.F.R. § 551.401(d) notes specifically that time considered to be hours of work under part 551 "shall be used only to determine an employee's entitlement to minimum wages or overtime under the Act [the Fair Labor Standards Act], and shall not be used to determine hours of work for pay administration under title 5, United States Code, or any other authority." The regulations in Part 551 thus do not address how this time should be treated under the leave statute. Finally, 5 U.S.C. §§ 551.431 and 412 concern standby pay and preliminary/postliminary work, neither of which are at issue here.
Put simply, there is no authority cited by the Union that requires the recredit of leave in the circumstances set out in the provision. Similarly, nothing in Chapter 630 of Title V, governing leave, or the regulations implementing that Part either require or prohibit the recredit of leave in the circumstances described by the provision. The regulation cited by the Agency, 5 C.F.R. § 630.206(a), provides that agencies may negotiate "a minimum charge" for leave, and sets a default minimum charge of one hour if no specific agency charge has been set. Although this regulation provides support for the principle that minimum charges to leave may be negotiated, it does not address the recrediting of leave. As there is no law or regulation that prohibits the provision at issue, the Union's argument that the provision is contrary to law must be rejected.
3. The Award Does Not Unlawfully Place the Burden on the Union to Justify Why the Scope of the Grievance Procedure Should Not Be Narrowed
The Union claims that the award is contrary to AFGE v. FLRA, 712 F.2d 640, and other case law because the Arbitrator unlawfully placed the burden on the Union to justify why the scope of the grievance procedure should not be narrowed. However, the Union has not demonstrated that the award is contrary to this decision. In AFGE v. FLRA, the court stated that if a bargaining impasse is reached on the scope of the negotiated grievance procedure, the Panel is to impose a broad scope grievance procedure unless the limited-scope proponent can persuade it to do otherwise; the court would expect the Panel "to rule against a proponent of a limited procedure who fails to establish convincingly that, in the particular setting, its position is the more reasonable one." Id. at 649.
In this case, the Arbitrator's factual findings show that he examined the evidence and found the Agency's arguments as to a limited-scope grievance procedure "persuasive." Award at 10 and 11. The Arbitrator's findings show that he did not unlawfully place the burden on the Union, but properly assessed the persuasive weight of each side's presentation in reaching his conclusion. Accordingly, the Union has not established that the award is contrary to AFGE v. FLRA.
4. There Is No Basis to Direct the Arbitrator to Reconsider His Decision on the Performance Management and Evaluation Article
Finally, as its fifth and last exception, the Union contends that if the Authority grants the Union's first exception and orders adoption of the Union's proposed article on grievances, the Authority should also order the Arbitrator to reconsider his decision on the performance management and evaluation article "insofar as he linked it to the [g]rievance article." Exceptions at 20. However, since we have denied the Union's first exception, this exception is without merit and must be denied.
The exceptions are denied. [ v59 p944 ]
Section 7116(d) of the Statute provides:
Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.
Section 5 C.F.R. § 551.401 provides, in pertinent part as follows:
§ 551.401 Basic principles
(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work." Such time includes:
(1) Time during which an employee is required to be on duty;
(2) Time during which an employee is suffered or permitted to work; and
(3) Waiting time or idle time which is under the control of an agency and which is for the benefit of an agency.
(b) For an employee, as defined in 5 U.S.C. 5541(2), hours in a paid nonwork status (e.g., paid leave, holidays, compensatory time off, or excused absences) are "hours of work" under this part.
. . . .
(d) Time that is considered hours of work under this part shall be used only to determine an employee's entitlement to minimum wages or overtime pay under the Act, and shall not be used to determine hours of work for pay administration under title 5, United States Code, or any other authority.
Section 551.412 provides, in pertinent part as follows:
§ 551.412 Preparatory or concluding activities
(a)(1) If an agency reasonably determines that a preparatory or concluding activity is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, and that the total time spent in that activity is more than 10 minutes per workday, the agency shall credit all of the time spent in that activity, including the 10 minutes, as hours of work.
(2) If the time spent in a preparatory or concluding activity is compensable as hours of work, the agency shall schedule the time period for the employee to perform that activity. An employee shall be credited with the actual time spent in that activity during the time period scheduled by the agency. In no case shall the time credited for the performance of an activity exceed the time scheduled by the agency. The employee shall be credited for the time spent performing preparatory or concluding activities in accordance with paragraph (b) of § 551.521 of this part [§ 551.521 concerns fractional hours of work for overtime pay and provides that a quarter of an hour shall be the largest fraction of an hour used for crediting overtime].
5 C.F.R. § 630.206(a), provides, in pertinent part, as follows:
§ 630.206 Minimum charge.
(a) Unless an agency establishes a minimum charge of less than one hour, or establishes a different minimum charge through negotiations, the minimum charge for leave is one hour, and additional charges are in multiples thereof. If an employee is unavoidably or necessarily absent for less than one hour, or tardy, the agency, for adequate reason, may excuse him without charge to leave.
(b) When an employee is charged with leave for an unauthorized absence or tardiness, the agency may not require him to perform work for any part of the leave period charged against his account.
File 1: Authority's Decision in 59 FLRA No.
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 59 FLRA No. 168 - Authority's Decision
Footnote # 2 for 59 FLRA No. 168 - Authority's Decision
We note that the term "proposal" is used to describe proposals submitted to an arbitrator for consideration before such proposals are adopted by the arbitrator. Afterwards, the proposals are referred to as "provisions."
Footnote # 3 for 59 FLRA No. 168 - Authority's Decision
The Union challenges only the underlined portion of the provisions. For purposes of this decision, we will refer to the provisions as Provisions 1, 2, and 3, rather than by their location in the agreement.
Footnote # 4 for 59 FLRA No. 168 - Authority's Decision
Footnote # 5 for 59 FLRA No. 168 - Authority's Decision
Footnote # 6 for 59 FLRA No. 168 - Authority's Decision
Footnote # 7 for 59 FLRA No. 168 - Authority's Decision
Subsequently, during the pendency of this case before the Authority, the parties filed a joint motion requesting the Authority to stay its decision pending the parties' ability to resolve their differences. The Authority granted the motion. Thereafter, the Union advised the Authority that the parties were unable to resolve their differences and requested that the case be taken out of abeyance. The Authority granted the request.
Footnote # 8 for 59 FLRA No. 168 - Authority's Decision
Member Armendariz views the provisions as permissive subjects of bargaining. With regard to the provision concerning interim negotiations, the Authority recently held that a proposal substantively similar to this provision is a permissive subject of bargaining. National Treasury Employees Union, 59 FLRA 217 (2003) (Member Pope dissenting) (NTEU), petition for review filed sub nom. NTEU v. FLRA, Case No. 03-1351 (D.C. Cir. Oct. 17, 2003). With regard to the provision concerning grievances, Member Armendariz would find that, as it requires the Union to waive part of its right under § 7116(d) of the Statute, it also is a permissive subject of bargaining. See id. at 220 (citing Merit Systems Protection Board Professional Assoc., 30 FLRA 852, 861-62 (1988)).
Member Pope notes that, consistent with her dissent in NTEU, as well as private sector precedent, she would find the provision concerning interim negotiations to be a mandatory subject of bargaining and, as a result, not contrary to law. See McAllister Bros., Inc., 312 NLRB 1121, 1121, 1129 (1993). Member Pope also notes, with regard to the provision concerning grievances, that it is well-established that the scope of the negotiated grievance procedure is a mandatory subject of bargaining. See AFGE, Local 3911, 56 FLRA 480, 482 (2000) (citing Vt. Air Nat'l Guard, Burlington, Vt., 9 FLRA 737, 740-41 (1982), and AFGE, Local 225 v. FLRA, 712 F.2d 640, 646 n.27 (D.C. Cir. 1983). However, Member Pope finds it unnecessary to determine whether the provision concerning grievances is a mandatory subject of bargaining because, even if it is not mandatory, it is at a minimum a permissive subject and, as a result, not contrary to law. Therefore, for purposes of this decision, Member Pope will assume that both provisions constitute permissive subjects of bargaining.
Footnote # 9 for 59 FLRA No. 168 - Authority's Decision
Member Pope notes that the dissent errs in considering this case analogous to the Court's decision in Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70 (1998) (Wright). In Wright, the Court held that the presumption of arbitrability did not extend to arbitration of individual employment discrimination claims. According to the Court, any contractual requirement to arbitrate such claims "must be particularly clear" and, specifically, a "union-negotiated waiver of employees' statutory right to a judicial forum for claims of employment discrimination" must be clear and unmistakable. Id. at 80. Nothing in Wright speaks, in any way, to a union's ability to enter into bargaining, including impasse resolution, over permissive subjects of bargaining involving its own rights. Indeed, the Court emphasized the narrowness of its decision by holding that the clear and unmistakable standard did not even apply to "an individual's waiver of his own rights[.]" Id. at 80-81. In addition, the dissent's emphasis on de novo review misses the point that, in this case, the Authority is conducting de novo review of the exception alleging that the interest Arbitrator's award is contrary to law. Conducting that review, there is no dispute that the parties lawfully could have agreed bilaterally to the articles on grievances and interim negotiations that were imposed by the Arbitrator. There also is no dispute that the parties voluntarily bargained over those articles and voluntarily submitted to impasse resolution pursuant to binding interest arbitration. The award is, by definition, not contrary to law because, at most, it imposes permissive contract terms. That is the end of the matter. Introducing the clear and unmistakable doctrine in this situation will only cause confusion. See IRS v. FLRA, 963 F.2d 429, 441 (D.C. Cir. 1992) (court held that the Authority had "rushed headlong into the embrace of a convoluted `clear and unmistakable waiver' analysis without adequately considering whether that analysis [was] appropriate"). See also Dep't of Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 57-58 (D.C. Cir. 1992) (court reversed Authority decision applying clear and unmistakable waiver doctrine on ground that the "analytical approach . . . completely fails to take account of the fundamental distinction between the exercise of the right to bargain and the waiver of that right.").